CT 2.8-5 Defense of Personal Property — § 53a-21

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CONNECTICUT CRIMINAL JURY INSTRUCTIONS (C.C.J.I.)

CT 2.8-5 Defense of Personal Property — § 53a-21

Revised to December 1, 2007

The evidence in this case raises the issue of the use of force against another to defend personal property. This defense applies to the charge[s] of <insert applicable crimes> [and the lesser included offense[s] of <insert lesser included offenses>.]

After you have considered all of the evidence in this case, if you find that the state has proved each element of <insert applicable crimes and any lesser included offenses>, you must go on to consider whether or not the defendant acted justifiably in the defense of personal property. In this case you must consider this defense in connection with count[s] __ of the information.

A person is justified in the use of force against another person that would otherwise be illegal if (he/she) is acting in the defense of personal property. It is a complete defense to certain crimes, including <insert applicable crimes and any lesser included offenses>. When, as in this case, evidence that the defendant’s actions were in defense of personal property is introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant acted in defense of personal property. If the state fails to disprove beyond a reasonable doubt that the defendant acted in defense of personal property in accordance with my instructions, you must find the defendant not guilty of <insert applicable crimes and any lesser included offenses> despite the fact that you have found the elements of (that crime / those crimes) proved beyond a reasonable doubt. The defendant has no burden of proof whatsoever with respect to (his/her) defense

The statute defining this defense reads in pertinent part as follows:

a person is justified in using reasonable physical force1 upon another person when and to the extent that (he/she) reasonably believes such to be necessary to <insert as appropriate:>

prevent an attempt by such other person to commit (larceny / criminal mischief involving property).

regain property that (he/she) reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force.

To convict the defendant of <insert applicable crime>, the state must disprove beyond a reasonable doubt one of the following elements:

<Select either A. or B. depending on the evidence supporting the defense:>

A. TO PREVENT A LARCENY OR CRIMINAL MISCHIEF INVOLVING PROPERTY

Element 1 – Prevented larceny or criminal mischief

The first element is that the defendant was preventing another person, <insert name of other person>, from committing (larceny / criminal mischief involving property). <Insert as appropriate:>

Larceny is the wrongful taking of the property of another with the specific intent to keep it for (himself/herself) or a third person. <Instruct according to the type of larceny that the facts support.>2

Criminal mischief involving property is when a person, knowing (he/she) has no right to do so, intentionally damages tangible property of another.3

The property could belong to the defendant or to any other person for purposes of this defense.

Element 2 – Actual belief that force was necessary

The second element is that the defendant actually — that is, honestly and sincerely – believed that <insert name of decedent/complainant> was committing (larceny / criminal mischief involving property) and that physical force was necessary to prevent the completion of the crime. “Physical force” means actual physical force or violence or superior physical strength. Physical force may not be used, however, if it reasonably appears that the perpetrator was ceasing the criminal act, for this would no longer be defensive force, but rather retaliatory and unlawful force.

Element 3 – Reasonableness of the belief

The third element is that the defendant’s belief that physical force was necessary was a reasonable belief. That is, would a reasonable person in the defendant’s circumstances at the time of (his/her) actions, viewing those circumstances from the defendant’s point of view, have shared that belief? It may not have been actually necessary to use force, but if the defendant reasonably believed that force was necessary in order to regain the property, then such force was justified.

Conclusion

You must remember that the defendant has no burden of proof whatsoever with respect to this defense. Instead, it is the state that must disprove beyond a reasonable doubt that the defendant acted in the defense of property if it is to prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses on which you have been instructed]. The state need not disprove all of the elements of the defense of property. Instead, it can defeat the defense by disproving any one of the elements of defense of property beyond a reasonable doubt to your unanimous satisfaction.

If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of <insert applicable crimes>, you shall then find the defendant not guilty and not consider the defense.

If you unanimously find that all the elements of <insert applicable crimes and any lesser included offenses> have been proved beyond a reasonable doubt, you shall then consider the defense of personal property. If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense, you must reject that defense and find the defendant guilty.

If, on the other hand, you unanimously find that the state has not disproved beyond a reasonable doubt at least one of the elements of the defense, then on the strength of that defense alone you must find the defendant not guilty of <insert applicable crimes> despite the fact that you have found the elements of (that crime / those crimes) proven beyond a reasonable doubt [and not consider any of the lesser-included offenses].

B. TO REGAIN PROPERTY WRONGFULLY TAKEN OR WITHHELD BY ANOTHER

Element 1 – Regain property recently and wrongfully taken

The first element is that the defendant was using force in order to regain property that (he/she) believed was wrongfully taken or withheld by someone. The property could belong to the defendant or to any other person for purposes of this defense.

Furthermore, this use of force must occur within a reasonably short time after the perceived larceny or damage occurred. There is no fixed time limit in which the defendant must act; rather, it is up to you to determine what was reasonable in light of all the existing circumstances. The use of reasonable physical force may be justified when only a short time has passed. However, the more time has passed since the perceived larceny or damage, the less reasonable the use of force will be. Whether the amount of time passed is reasonable is a question of fact for you to determine given the evidence in the case.

The property in question need not have been actually taken or withheld; indeed, it may rightfully have belonged to the other person.

Element 2 – Actual belief that force was necessary

The second element is that the defendant believed that physical force was necessary to regain the property. You must ask whether the defendant actually — that is, honestly and sincerely — believed that physical force was necessary to regain the property. “Physical force” means actual physical force or violence or superior physical strength. A person must only use as much force as is reasonably necessary to recover the property. (He/She) may not use force to inflict punishment or vengeance. Also, (he/she) may not unnecessarily wound the other person, or use a dangerous weapon.

Element 3 – Reasonableness of belief

The third element is that the defendant’s belief that physical force was necessary was a reasonable belief. That is, would a reasonable person in the defendant’s circumstances at the time of (his/her) actions, viewing those circumstances from the defendant’s point of view, have shared that belief? It may not have been actually necessary to use force, but if the defendant reasonably believed that force was necessary in order to regain the property, then such force was justified.

Conclusion

You must remember that the defendant has no burden of proof whatsoever with respect to this defense. Instead, it is the state that must disprove beyond a reasonable doubt that the defendant acted on a reasonable belief that physical force was necessary to regain the property if it is to prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses on which you have been instructed and deliberated]. The state need not disprove all of the elements of the defense of property. Instead, it can defeat the defense by disproving any one of the elements of defense of property beyond a reasonable doubt to your unanimous satisfaction.

If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of <insert applicable crimes>, you shall then find the defendant not guilty and not consider the defense.

If you unanimously find that all the elements of <insert applicable crimes and any lesser included offenses> have been proved beyond a reasonable doubt, you shall then consider the defense of personal property. If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense, you must reject that defense and find the defendant guilty.

If, on the other hand, you unanimously find that the state has not disproved beyond a reasonable doubt at least one of the elements of the defense, then on the strength of that defense alone you must find the defendant not guilty of <insert the applicable crimes> despite the fact that you have found the elements of (that crime / those crimes) proven beyond a reasonable doubt [and not consider any of the lesser-included offenses].

Footnotes:

1 The statute limits the use of this defense to reasonable force, expressly stating that a person “may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.” A defendant is thus not entitled to a charge on defense of personal property if deadly physical force was used. See State v. Woolfolk, 8 Conn. App. 667, 672-72D (1986); State v. Weber, 31 Conn. App. 58, 68- 73, cert. denied, 226 Conn. 908 (1993). See Self-Defense and Defense of Others, Instruction 2.8-1, particularly the requirement that a person confronted with deadly physical force must surrender property if he or she knows that the attacker would then flee.

2 General Statutes §§ 53a-122 — 53a-125b define larceny. The defendant’s request for an instruction on this defense should specify the degree of larceny that he or she is claiming occurred. If the elements of some degree of larceny are not present, then this defense does not apply See State v. Brunette, 92 Conn. App. 440, 448-49 (2005) (discussing criminal trespass and the defense of premises).